The recent mistake by the Supreme Court in the Kennedy case (missing a federal law authorizing the death penalty for child rape) has prompted this interesting idea from law professor Tom Smith over at The Right Coast. He suggests that the Supreme Court should post its decisions on the Web before they become final, to take advantage of bloggers who might discover errors:

Is there a way that the Court could take advantage of current social technologies to dramatically improve its understanding of the relevant law in any given case? Of course there is, but I'm not holding my breath. You could, for example, post all of the briefs in wiki format, or something similar, and then sift through the results. But any procedure you could come up with could be gamed, and it seems unlikely the federal judiciary could ever bring itself to modify its procedures to really take advantage of Web 2.0 sorts of tech, at least not until we are on Web 6.0 or so, or indeed before the Singularity gets here anyway. Perhaps some law clerk will be drafting the opinion and his computer will say back —
"No, no, you're getting that wrong. There is a federal law on this — here, I'll send you the cite."

The "wisdom of crowds" is a well-documented phenomenon. It would be nice if the Supreme Court (among other important institutions) could figure out how to harness it.

When I was a judge, I tried to take advantage of the wisdom of others in a very modest way. I circulated "tentative" written rulings to the parties before holding oral argument, and then at the argument asked the parties whether they saw anything wrong with my proposed decision. Perhaps the Supreme Court could read the merits briefs in a case, release tentative opinions to the general public, and then hold oral argument — followed by revisions of the opinions if the arguments (and perhaps supplemental briefing) disclosed any errors.

Update: Law prof Jason Mazzone has made a similar suggestion to this a few years back, available at this link.

The problem here is very simple. Whether or not there is a "national consensus" on something, such as the desirability of capital punishment for child rape, is a question of fact. If it is relevant to the constitutional issue, it should have been litigated as such in the lower courts, or there should have been a remand to consider it.

The trouble is, as I have noted many times here before, is that the Supreme Court routinely makes findings of fact based on its own "investigations" that have never been tested by the normal practices of our adversary system and are therefore not found in the record.

The nature of the internet is such that the preliminary ruling would be seen worldwide, and pontificated on, as if it were announced publicly like rulings are today. There is no way the updated ruling would not be seen as politically tainted.

I can't help but wonder: Isn't the losing party always going to have a problem with the tentative decision? That is, "Judge, of course it's wrong. I lost." I wonder if oral argument then just becomes a desperate attempt to swim against the currents.

JB and Modus Ponens make good points. The court already has assistance from a variety of constituencies (amicus briefs, law clerks, the parties, themselves, and anyone else they choose to consult). The risk of political taint seems high for a pre-publishing. Even if you have a large pool of "wisdom of the crowds" you still can't disqualify human error.

Sean M. wonders whether the losing party would always have an objection to a "tentative" ruling. Well, yes -- but the key thing was to see what the objection was. Did it have any substance? Or was it just disappointment? I found that the practice sharpened oral argument substantially -- and, not incidentally, helped me avoid a few errors that would otherwise have crept into my final opinions.

Modus Ponens points out astutely that amicus briefs already harness the wisdom of crowds. True, but . . . . I think the Supreme Court could harness a much bigger crowd. Amicus briefs often tend to be "hired guns" that the parties round up for the case. Moreover, it is hard for the general public to track the nature of the arguments being presented to the Supreme Court before it releases a decision. For example, the briefs are not posted on the Supreme Court's website -- which seems like an easy fix that could expand the folks looking at the information presented to the Court.

I think the proposal is awful. It would create a bunch of noise, and it would mask the wisdom of the Courts and the parties and amici that informed the Courts before the decision was rendered.
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Said another way, there is social and public value to letting a Court be hoist on its own petard. They are mere humans too.

The "tentative rulings" idea struck me as very odd but the more I think about it the more I like it. If you have the advantage of knowing where the judge is leaning, and what he/she thinks is important in your case, you will do a much better job arguing it. It seems like it would be a lot of work for the judge to do that regularly.

— Moreover, it is hard for the general public to track the nature of the arguments being presented to the Supreme Court before it releases a decision. For example, the briefs are not posted on the Supreme Court's website — which seems like an easy fix that could expand the folks looking at the information presented to the Court. —
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On important issues, interested members of the public easily obtain access to the briefs. See ABA Merit Briefs, for example. And Findlaw SCOTUS Briefs for another. The SCOTUS document WHERE TO FIND BRIEFS OF THE SUPREME COURT OF THE U.S. lists the second of those two.
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I frequent Lyle Denniston's SCOTUSblog, which is a rich source of insight and source documents, as well.
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Of course, I have no objection to SCOTUS being more helpful in presenting briefs, and I'd extend that observation to the Circuit Courts of Appeal and the District Courts.

...I'd call it the Law Clerk Full Employment Act, and it would grow to fill the space available, that space being infinite. After a decision was published, somebody, somewhere, would discover the diamond in the goats intrails of emails that he could claim was overlooked. Do we really want to put the 9 old geezers through that on every decision? Do our law schools produce enough graduates to perform the reviewing task ? I suspect the answers are: No / No .

While I think making amicus briefs available on-line is a great idea, the idea of inviting comment from the general public seems far more likely to result in the Court and/or counsel for the parties getting slammed with mountains of material, the vast majority of which will be duplicative at best and garabage at worst. People who are informed and motivated already can offer their thoughts through the existing amicus process. Making the process easier is unlikely, IMHO, to significantly improve the quality of information versus the massive increase in "noise". While there is something to be said for the wisdom of crowds, there is also something to be said for filtering systems that deter people with a merely casual interest from intervening in highly technical matters.

I would think there's a big problem releasing the ruling, which--when tossed to "the crowd" on the Internet--would prompt the usual reactions we have today. But if you wanted to harness the power of distributed investigation for discovering specific facts, there should be a way to do that.

In this case, say a SCJ's law clerk posted a bleg asking for any statutes which applied the death penalty to child rape. Whoever cared enough to investigate could answer him, and maybe this specific problem would have been averted. The problem comes with total reliance on this method--what if no one answers? What if the people who answer have an agenda? What if they don't have a specific agenda, but the group who's actually interested in the minutae of SC rulings is a non-representative pool, who unconsciously self-select into a certain mindset which may affect how they answer... or whether they answer at all? (Do you expect them to respond with facts potentially damaging to their preferred side on that case?)

Of course this is aside from the usual questions of legality--are the justices obligated to acknowledge facts raised in this manner, who decides which findings fall into the "objective fact" category that can be outsourced in this manner, etc. Do the two sides in the case get to respond to the results of these investigations?

I can see the theoretical case for this working out OK, but I agree with the commenters above, it's just too complicated to actually work without damaging the Court.

Bad idea! What happens to the adversarial process? Then you will have technology geeks hired by the deeper pocket firms to get comments included in the blog to sway the Supreme Court. The persons who made the principal mistake here are the lawyers for the parties. It's a reflection of the minor role that military law plays in standard legal education that no one went there.

The losing party can always be inventive in coming up with a problem with the "tentative" decision.

You know, the thing we are bargaining for with a Supreme Court is that the people on the court do their best to get it right. Sometimes they may make mistakes and the ways of looking for mistakes do not successfully operate to catch the mistakes. That risk is something we take and it is OK with me.

How many bona fide errors are ever discovered? For minor errors, the court can already issue a corrected opinion, and for more significant errors we already have motions for reconsideration. More likely the "correction" process would be used by allies of the losing party as a way of pointing out spurious "errors" in the majority's reasoning, and as others have mentioned it would subject the Court's revisions to the appearance of political taint.

At the very least, the classic Miller case on the Second Amendment is often said to have a glaring error in the finding of fact.

The error is claimed that the Supremes didn't know that short-barreled shotguns had military use before the 1934 NFA was written. The Miller opinion held that the short-barreled shotgun wasn't useful for military/militia service.

Partly due to Miller being dead (and his lawyer being unable to go to DC for the hearing), this particular error was not challenged and not corrected.

Some factual errors in S Ct opinions include:
In Heller, both Scalia and Stevens say that Miller was convicted, when he wasn't. (Scalia also says that Miller found a sawed-off not to be a militia weapon, which isn't how I read Miller, but that's more interpretation than just fact.)
In Crawford v Marion County, Scalia (and maybe Stevens) says that people can get ID free, when in fact they first have to buy a birth certificate, so it's not free in the usual understanding of that term.
These are minor errors that didn't affect the outcome.
In Hiibel v Nevada, the Court treated the case as though Hiibel had been asked to say who he was and refused. What did happen is that Hibbel was ordered to produce government ID (such as a driver's license), and refused. Hiibel in effect holds that Nevadans have to obtain pedestrian licenses, internal passports, but that wasn't what the Court said it was deciding. The opinion was a hypothetical one instead of addressing the actual case and controversy before it. Probably would have come out the same way, but still important.
The Court does circulate opinions before formally printing them, which I think lets them catch typos in case citations, etc. I don't know how often, if ever, they go back and fix material errors when they got it wrong.
Judge Cassell's practice of circulating draft opinions to the parties is a wise one. I don't know whether it would be practical at the high court.

I agree that whatever input the public wants to provide should be made available up front, so that the justices can appropriately weigh and incorporate them into their decisions. Neither making tentative decisions nor putting decisions on hold for public approval strike me as the right thing for the Court to do.

Judge Cassell: I appeared in front of you on a civil motion where you followed this procedure. I struck us as odd at the time, but in retrospect I think that was simply because none of us had seen it done before. That said, I thought it helped tremendously. More often than not, I read decisions on cases that I argued and think that the court "missed" something. In your case, however, we lost--but due to your procedure, we were at least able to walk away from the experience feeling like we were heard on the issues that ended up mattering. I thought it was a remarkably honest, forthright way to approach judicial business.

I'm not sure that you'd get the same advantage if this was done on a high profile supreme court stage, though, in large part because of scale. While it may be manageable/helpful to allow litigants to comment on a tentative opinion in a district court case, I'm not sure how you'd go about sifting through the mountains of straight-up advocacy that you'd get on an important SCOTUS draft. In theory, it seems like it ought to help, but in practice, I'm not sure how it could.

-- At the very least, the classic Miller case on the Second Amendment is often said to have a glaring error in the finding of fact. --
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It doesn't have an erroneous finding. It has an absence of finding, and it sent the case back, with instructions to obtain a finding.
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Miller has been misconstrued as containing a finding regarding the applicability of short barrel shotguns to "militia" -or- military use.
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So, there are probably scores of Court cases that have the error of misconstruing Miller - but if you went back to correct erroneous construction and application of case law, and assorted other intellectually dishonest tricks used to obtain the desired end result, you'd be upsetting the entire house of cards.

As an advocate, I would find an opinion circulated before argument disturbing. It would greatly change my approach -- whichever way the opinion was favoring. It would, in a rhetorical sense, change the first argument into a rehearing.

The Court already has a perfect tool for this job -- rehearing. Whatever forces make the judges reluctant to grant rehearing now would surely inhibit them from changing position once an initial draft is circulated through the media.

Substantively, the first commenter has it right. The problem is trying to infer a national 'consensus' about whether a penalty is ever just from the absence of legislative action. It only takes one good counterexample to pop that bubble.

I think that it is an excellent idea and I have long been in favor of it. That is how federal administrative agencies do it -- they publish tentative rulings in the Federal Register and then have public comment periods.

The rules of the Supreme Court allow petitions for rehearing but nearly no petitions for rehearing have ever been granted in the history of the court.

As an advocate, I would find an opinion circulated before argument disturbing. It would greatly change my approach -- whichever way the opinion was favoring.

Have you really never seen a tentative? I mean really, I don't think you are much of an advocate if you haven't.

Judge Cassell -- I think tentatives work great at the trial court level, but would get really problematic at the appellate level, especially at the US Supreme Court. We have 9 different Justices, and there likely would be 9 different tentatives in certain cases -- or the Court would have to haggle over getting 5 people to agree to one tentative. Then, for example, let's say Scalia isn't in the tentative majority, oral argument is going to be a nightmare. We already have it where it's really the Justices talking to each other; imagine what it would be like if there was already a written opinion one of the Justices like Scalia could use all of oral argument to punch holes in and ridicule.

The "wisdom of crowds" is a well-documented phenomenon. It would be nice if the Supreme Court (among other important institutions) could figure out how to harness it.

It's called amicus curiae and it predates Web 2.0 by more than a handful of years.

Amicus briefs are not a substitute for public comment periods. Amicus briefs are long formal affairs and in the Supreme Court require the acceptance of either all parties or the court (Rule 37 of the court).

Also, even amicus briefs sometimes give a tremendous amount of material to the court to review -- for example, the Supreme Court had 62 amicus briefs in the Regents of U. Cal. v. Bakke reverse discrimination case. And the amicus briefs in the case were not ignored -- Harvard University's amicus brief had a decisive influence on the decision.

An interesting idea, Judge Cassell. Though I'm not familiar with the concept of "tentative opinions," at least as practiced in your courtroom, I can see how they might prove useful at the district court level.

That said, however, I wonder if SCOTUS and the Circuit Courts of Appeals would balk at giving what some might interpret as advisory opinions or gratuitous judicial utterances.

The practice in UK is for the law lords to send confidential copies of the judgment to the parties two or three days before its public delivery so that any factual errors or omissions are spotted. But if parties use that opportunity to argue or rather to reargue the case on the merits they risk putting themselves in contempt of court.

Have you really never seen a tentative? I mean really, I don't think you are much of an advocate if you haven't.

I've never seen a tentative either, and it has nothing to do with my skills as an advocate. It's because that's not the practice in my jurisdiction. It's a rare practice, as far as I know, which is why Judge Cassell is advocating for more to start doing it.

I think there's already a perfectly adequate vehicle in place for this problem -- rehearings/reconsiderations. If you think the judge missed an issue, then you can file for a rehearing on it. I've filed several in my career. Some have been granted, some haven't.

And if it's a pure typographical issue rather than a substantive one, that can be corrected before the slip op is printed as the final opinion.

Asking for crowd-wisdom on specific points would not be helpful either. Kennedy didn't make the error he made because he didn't know, he made it because he thought he knew. It was an unknown unknown, and he wouldn't have thought to ask for help.

We have 9 different Justices, and there likely would be 9 different tentatives in certain cases -- or the Court would have to haggle over getting 5 people to agree to one tentative.

How is that any different from the situation we have now? There are often three or more opinions in a single case. There were nine separate opinions in the Dred Scott case.

imagine what it would be like if there was already a written opinion one of the Justices like Scalia could use all of oral argument to punch holes in and ridicule.

Dissenting opinions often comment on the contents of the majority opinion, so yes, judges do punch holes in and ridicule a written opinion in a case. And a comment period would not have to include oral argument.

JB said (7.9.2008 7:27pm) --

Kennedy didn't make the error he made because he didn't know, he made it because he thought he knew. It was an unknown unknown, and he wouldn't have thought to ask for help.

The idea behind tentative opinions and public comment periods is that judges would get help whether they ask for it or not.

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Because of delays, cases often take many years to work their way through the courts, but when it comes to taking a few extra weeks or months to get the public's opinion, the courts are in a big hurry to release the decision.

The courts have taken advantage of modern technology in other ways -- for example, many courts now allow or even require electronic filing of court documents. So why not use the Internet for accepting public comments on tentative court decisions?

The huge volume of comments that would be submitted in a controversial court case would be problem, but the same problem exists for controversial administrative agency decisions, e.g., the decision on whether to sell the "morning after" contraceptive to underage customers without prescriptions. Also, several hundred comments were submitted on the current FRAP Rule 32.1 that requires all federal courts to allow citation of unpublished opinions.

Another problem, of course, is that flaws in opinions are often spotted long afterwards, when it would be too late to correct them. The only solution then is to argue that the opinion is erroneous if it is cited as a precedent.

Also, requiring tentative opinions would help put an end to the disgraceful practice of issuing judgments without opinions. Judge TJ "Mad" Hatter of the Central California federal district court had a bad reputation for doing that.

One appellate court in California issues tentative opinions in every case. Although the California Supreme Court gently chided them on the grounds that their procedures unnecessarily discouraged oral arguments, the appellate court made the minor fixes required continues to issue tentatives to this day.

Start with page 4 of the opinion: www.courtinfo.ca.gov/opinions/archive/S106906.PDF

One appellate court in California issues tentative opinions in every case. Although the California Supreme Court gently chided them on the grounds that their procedures unnecessarily discouraged oral arguments, the appellate court made the minor fixes required [and] continues to issue tentatives to this day.

IMO a bad feature of this tentative opinion program is that supplemental briefs are not allowed without court permission (footnote 2 on page 5 of the Cal. Supreme Court opinion). However, this tentative opinion program is certainly a big improvement over the procedures of most other courts. This appeals court's website makes the need for tentative opinions obvious:

Every court of appeal in California, and most intermediate appellate courts throughout the country, prepare a "bench memorandum" prior to oral argument. These memoranda often take the form of draft opinions and often become the final opinion of the court with little, if any, modifications. The great majority of appellate courts do not send the draft opinion to counsel prior to oral argument, and, as a result, counsel are completely unaware of the court’s initial response to the arguments in their briefs and do not know how to focus their oral argument. Consequently, oral argument is often a dry, meaningless ritual in which counsel merely review the arguments set forth in their briefs.

So it might not even be necessary to prepare special tentative opinions -- the tentative opinions may already exist as "bench memoranda." Then the only issue is whether to submit these memoranda to the parties and/or the general public for review. Also, there are really two questions here: (1) whether to submit tentative opinions to the parties and (2) whether to submit tentative opinions to the general public. And the best answers to those questions may be different for different courts and different cases.

Also, courts need to find more ways of saving time by cutting the malarkey and getting to the point. The courts make time for big cases by giving short shrift or no shrift to little (or seemingly little) cases.

Unfortunately, the wisdom of crowds is hard to separate out from the crap of crowds (not to mention the right-on response about V**g** ads). I listen to all the arguments at the 9th Circuit and a majority of the judges will use the "this is what's bothering me about this case" approach to get the lawyers to address the significant issues, usually with enough revelation of their thought process to get an accurate response. If an issue has not been addressed in the briefs, a request that the parties address a particular issue often goes out. It is the attorneys who best know the proceedings and have researched the relevant law (at least if they are half decent), it is the judges that have to decide, they're the ones that should be in on the conversation. Perhaps there could be more use of court-appointed amici in casses where counsel don't come up to snuff. Let the crowds blog.

Unfortunately, the wisdom of crowds is hard to separate out from the crap of crowds

That's true -- many comments may be just emotional, ill-informed, frivolous, or not addressing legal or constitutional issues. But public commentary on controversial administrative rulings published in the Federal Register often has the same problem, and there may be thousands of comments on a single ruling.

not to mention the right-on response about V**g** ads

That is a frivolous objection.

I listen to all the arguments at the 9th Circuit and a majority of the judges will use the "this is what's bothering me about this case" approach to get the lawyers to address the significant issues, usually with enough revelation of their thought process to get an accurate response.

Instead of just making off-the-cuff replies to the judges' oral statements, the attorneys can do a much better job of preparing their arguments if they know in advance what the judges are thinking and what the judges are focusing on. Also, maybe the attorneys would have questions to ask the judges about the bench memorandum (a tentative opinion often prepared by appeals court judges) but would not be able to ask those questions because they didn't see the memorandum.

If an issue has not been addressed in the briefs, a request that the parties address a particular issue often goes out.

And the attorneys may be caught flat-footed if they haven't had time to research and think about a particular issue.

Let the crowds blog.

Blogs are no substitute for a formal public comment procedure. There are too many blogs to review, people might not know which blogs to leave their comments at, some of the best blogs on a subject might be ignored, and there is rampant arbitrary censorship of comments on blogs.

Also, as I said, there are really two questions here: (1) whether to submit tentative opinions to the parties (and maybe also amici) and (2) whether to submit tentative opinions to the general public. IMO the correct answer to the first question is always yes.

Another consideration is that -- for various reasons -- there is often no oral hearing. The court might not grant an oral hearing or paying travel expenses to a distant courthouse may be unaffordable or a great burden for non-rich litigants (law bloggers often think that everyone is rich and famous like they are). If there is no oral hearing, then a tentative opinion and supplemental briefing would be the only opportunity -- other than a petition for rehearing -- for litigants to challenge the reasoning of the judge(s).

A problem with the idea that petitions for rehearing are a solution is that the court might not grant an oral hearing in connection with such a petition. In fact, the Supreme Court's rule for rehearings, Rule 44, says that an oral hearing in connection with a petition for rehearing of a judgment on the merits will be granted only with approval of a court majority at the instance of a justice who concurred in the judgment (though the rule says that a response from the opposing party will normally be requested before granting a petition for rehearing).

Instead of trying to fix things afterwards by means of a rehearing, why not try to get things right the first time?